C OF A (CIV) No.26/2009
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
STADIUM SUPERMARKET (PTY) LTD APPELLANT
BB ALERT (SECURITY GUARDS PTY) LTD RESPONDENT
CORAM : RAMODIBEDI P
HEARD : 16 APRIL 2010
DELIVERED: 23 APRIL 2010
Appeal against order of court setting aside a rescission of a default judgment. All court a quo called upon to decide was whether confirmation of rule nisi granted in absence of opposing party should be set aside. This court setting aside the confirmation of the rule.
 Three applications, all having the same case number and all arising from a default judgment granted on 8 May 2006, were heard in the court below during the period 11 September 2006 to 4 May 2009. The present appeal is against the judgment of Mofolo J delivered on 13 August 2009. Regrettably, the learned judge became confused as to the nature of the application before him and granted an order that was not sought.
 To avoid further confusion I shall refer, in what follows, to the appellant as ‘Stadium’ and to the respondent as ‘Alert’.
 On 8 May 2006 Alert sought and obtained default judgment against Stadium in an amount of M35,552.32. The claim was for security services rendered by the former to the latter. According to the deputy sheriff’s return of service, the summons was served on Stadium’s manager who refused to sign any documents.
 A writ of execution was issued and served on Stadium on 17 May 2006. Stadium responded by paying M10 000 on account of the debt and M3000 in respect of sheriff’s fees. On 6 July 2006 Stadium paid Alert a further M10 000.
 On 1 September 2006 the writ was re-issued for the balance of the claim in an amount of M14 647.07. This time Stadium did not pay but instead launched an application on 11 September 2006 not only for the rescission of the default judgment but also for repayment of the sums of M20 000.00 and M3000 which it had paid Alert and the deputy sheriff respectively. On the same day a rule nisi was granted ex parte by Hlajoane J.
 In support of the application Stadium sought to rely on a number of ‘defects’ in the application for default judgment. It is unnecessary to enumerate them. It is enough to observe that they were of a technical nature and of little substance. No attempt was made to advance a defence on the merits to Alert’s claim. Nor was any attempt made to explain Stadium’s delay in bringing the application. Indeed, at best for Stadium it was aware of the judgment by 17 May 2006 when the writ was served and yet its application for rescission was launched on 11 September 2006, almost 4 months later.
 As far as the payments were concerned, Stadium contended that they were made in error. They were not. There is nothing to suggest that Stadium thought the amounts were due but later discovered they were not. In subsequent proceedings Stadium changed its stance somewhat. It contended that the payments were made under ‘extreme pressure and coercion’. The condictio indebiti will be available to a party whose payment was involuntarily made because it was effected under pressure. However, it is unnecessary for the present to decide whether on the facts alleged a case for duress was made out. No doubt the decision in CIR v First National Industrial Bank Ltd 1990 (3) SA 641 (A) will provide some guidance should the issue again arise in the future.
 To continue the narrative, on 13 September 2006 Alert filed a notice of opposition to Stadium’s application setting forth its shortcomings outlined in more detail above. However, following a number of postponements Mofolo J on 19 March 2007 confirmed the rule nisi, rescinding the default judgment and ordering the repayment of the amounts paid by Stadium. The order was made in the absence of Alert and its legal representatives who were not in court.
 On 6 June 2007 Stadium issued a writ against Alert for M20 000 based on Mofolo J’s order of 19 March 2007. In the meantime, on 5 June 2007, Alert launched an application in which it claimed on order setting aside the order of 19 March 2007 in terms of Rule 45 on the grounds that it had been granted in error. In his supporting affidavit Mr Jacob Mahloane, the manager of Alert, stated that on 19 March 2007 there had been a general stay-away organized by a political party, there was no public transport, the Law Society had appealed to its members to postpone matters and the Chief Justice had issued a directive that matters set down for that day be postponed. Annexed to Mr Mahloane’s affidavit was a letter addressed by Alert’s attorneys to the Law Society recording the stay-away on 19 March 2007 and the
Society’s request that matters set down for that day be postponed. The writer sought the Law Society’s intervention and recorded that:-
“On 19 March 2007 our opponents Messrs T. Mahlakeng & Co appeared before Judge Mofolo and obtained confirmation of a Rule, despite the fact that the application was opposed.”
In its reply dated 31 May 2007, the Law Society suggested that Alert “follow the normal court procedures to have the matter rescinded”. The writer (the secretary of the Society) noted:-
“We are aware that Mr Mahlakeng intimated that he got the message relating to the suspension of court business after obtaining such an order”.
In its opposing affidavit, made by Mr Fenghui Lin, Stadium simply denied the stay-away on 19 March 2007, denied that the Law Society had made an appeal to its members and denied that there was a directive given by the Chief Justice. As far as the Law Society’s letter and in particular the secretary’s observation quoted above are concerned, Stadium’s response was simply that the letter constituted hearsay.
 In the meantime, on 8 June 2007 and in response to the writ issued by Stadium and the subsequent attachment of a vehicle belonging to Alert, the latter launched an application for the release of the vehicle. A rule was granted the same day and issued on 12 June 2007. The application was opposed by Stadium and in due course answering and replying affidavits were filed. It is, however, unnecessary to consider their content. On 15 June 2007 Peete J granted an order setting aside the rule nisi. The learned judge gave no reasons for the order, nor for making no order as to costs.
 On 4 May 2009, Alert’s application launched on 5 June 2007 for an order setting aside Mofolo J’s order of 19 March 2007 came before the same judge. It is apparent from the judgment that the learned judge was confused as to which application he was called upon to decide. After making certain dismissive comments concerning Alert’s allegation as to a stay-away, the judge proceeded to make an order setting aside on the merits an order for the rescission of the default judgment. But all he had been called upon to decide was whether or not to set aside his confirmation of the rule nisi on 19 March 2007 so that the application for rescission could be argued in due course.
 The effect of the order which the learned judge made was to revive the default judgment. This prompted Stadium to appeal. It is common cause that the judge erred and his judgment must be set aside. Alert did not appear to oppose the appeal and chose to abide the decision of the Court. It did however furnish the court with the heads of argument it had filed in the court below dealing with the application which Mofolo J should have decided. One course open to this Court would have been to refer the application Mofolo J failed to decide back to the High Court (i.e the application to set aside the confirmation of the rule nisi). But to do so would have resulted in yet a further delay (the default judgment was granted as long ago as 8 May 2006) and of course, further costs. All the papers which were before the court a quo are before us and this Court has the power to substitute an order which the court a quo ought to have made. In these circumstances, and having regard to the view I take after hearing counsel for the appellant, I think it would be in the interests of justice for this Court to dispose of the application and substitute the correct order.
 It will be recalled that on 13 September 2006 Alert’s attorneys filed a notice of opposition to Stadium’s application for rescission of the default judgment which had been launched on 11 September 2006 and that on 19 March 2007, being the much postponed return day of the rule nisi issued on 11 September 2006, there was no appearance on behalf of Alert. Although aware that the application was opposed, Stadium’s legal representative sought and obtained an order confirming the rule in the absence of Alert. Stadium’s response to Alert’s subsequent allegation of a general stay-away on 19 March 2007 was simply a bare denial that there had been such a stay-away or that the Law Society had made an appeal to its members that matters set down for that date be postponed. As to the Law Society’s letter of 31 May 2007, Stadium was content simply to categorize it as hearsay and ignore its contents. But in this Court Ms Mokoena who appeared for Stadium found herself hard pressed to suggest that the letter was anything but genuine. What is particularly worrying is the passage in the letter quoted in paragraph 9 above to the effect that Stadium’s legal representative had intimated to the Society that he received the message relating to the suspension of court business only after he had already obtained the order. In the circumstances, I am unable to accept that Stadium’s denial of the stay-away alleged by Alert served to give rise to a genuine dispute of fact and it must, I think, be accepted that there was indeed a stay-away on that day (cf Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 I).
 The rules of court make provision in certain circumstances for the granting of an order against a party in the absence of that party. But generally speaking it is not in the interests of justice that genuinely opposed matters be decided against a party in default of appearance. It therefore behoves a practitioner when his or her colleague unexpectedly fails to appear in an opposed matter at least to make some inquiries before seeking on order against the colleague’s client. Similarly, when the reason for his or her absence becomes known it is important for a practitioner to act responsibly and in the interests of justice.
 Had the circumstances resulting in Alert’s counsel failing to appear been brought to the attention of the judge when they became known I am satisfied that the appropriate order for the judge to have made would have been an order setting aside the previous order in terms of Rule 45 (1) (a) so that the matter could be properly argued. This is the order which I propose to substitute for the order made by the judge in the court a quo. As far as the question of the costs of the application is concerned, it seems to me that there was fault on both sides and that it would have been appropriate that no order as to costs be made.
 In the result the appeal is upheld and the order of the court a quo is set aside and the following is substituted in its stead:
The order made on 19 March 2007 confirming the rule nisi issued on 11 September 2006 is set aside in terms of Rule 45 (1) (a);
No order as to costs is made.
 As far as the costs of appeal are concerned, it may well be that had the judge a quo not become confused as to which application he was required to decide, there would have been no appeal. In the circumstances, no order as to the costs of appeal is made.
D G SCOTT
Justice of Appeal
I agree _________________________
M M RAMODIBEDI
President of the Court of Appeal
I agree __________________________
C T HOWIE
Justice of Appeal
Counsel for the Appellant : L.M. Mokoena
No appearance for the Respondent